SB-0840, As Passed House, December 13, 2006

SUBSTITUTE FOR

SENATE BILL NO. 840

     A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 8501, 8502, 8503, 8505, 8506, 8507, 8509,

8510, and 8514 (MCL 324.8501, 324.8502, 324.8503, 324.8505,

324.8506, 324.8507, 324.8509, 324.8510, and 324.8514), section 8501

as amended by 1998 PA 276 and sections 8502, 8503, 8505, 8506,

8507, 8509, 8510, and 8514 as added by 1995 PA 60, and by adding

sections 8501a, 8519, 8520, 8521, and 8522.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 8501. As used in this part:

     (a) "Adulterated product" means a product which contains any

deleterious or harmful substance in sufficient amount to render it

injurious to beneficial plant life, animals, humans, aquatic life,

soil or water when applied in accordance with directions for use on

the label, or if adequate warning statements or directions for use

which may be necessary to protect plant life, animals, humans,

aquatic life, soil or water are not shown on the label.

     (b) "Aquifer" means a geologic formation, group of formations,

or part of a formation capable of yielding a significant amount of

groundwater to wells or springs.

     (c) "Aquifer sensitivity" means a hydrogeologic function

representing the inherent abilities of materials surrounding the

aquifer to attenuate the movement of nitrogen fertilizers into that

aquifer.

     (d) "Aquifer sensitivity region" means an area in which

aquifer sensitivity estimations are sufficiently uniform to warrant

their classification as a unit.

     (e) "Brand or product name" means a term, design, or trademark

used in connection with 1 or more grades of fertilizer.

     (f) "Bulk fertilizer" means fertilizer distributed in a

nonpackaged form.

     (g) "Custom  mixed fertilizer blend" means a  mixed

fertilizer  formulated blended according to  individual

specifications  furnished by the consumer before mixing  provided

to a blender in a soil test nutrient recommendation or blended as

specifically requested by the consumer prior to blending.

     (h) "Department" means the department of agriculture.

     (i) "Director" means the director of the department of

agriculture or his or her designee.

     (j) "Distribute" means to import, consign, sell, barter, offer

for sale, solicit orders for sale, or otherwise supply fertilizer

for sale or use in this state.

(k) "Distributor" means any person who distributes fertilizer

for sale or use in this state.

(l)  (k)  "Fertilizer" means a substance containing 1 or more

recognized plant nutrients, which substance is used for its plant

nutrient content and which is designed for use, or claimed to have

value, in promoting plant growth. Fertilizer does not include

unmanipulated animal and vegetable manures, marl, lime, limestone,

wood ashes, and other materials exempted by rules promulgated under

this part.

(m)  (l)  "Fertilizer material" means  any substance containing

any recognized plant nutrient, which is used as  a fertilizer  or

for compounding mixed fertilizers. that is any of the following:

     (i) Contains not more than 1 of the following as primary

nutrients:

     (A) Total nitrogen (N).

     (B) Available phosphate (P₂O₅).

     (C) Soluble potash (K₂O).

     (ii) Has 85% or more of its plant nutrient content present in

the form of a single chemical compound.

     (iii) Is derived from a plant or animal residue or by-product or

natural material deposit which has been processed in such a way

that its content of plant nutrients has not been materially changed

except by purification and concentration.

     (n) "Fund" means the fertilizer control fund created under

section 8514.

(o)  (m)  "Grade" means the percentage guarantee of total

nitrogen (N),  available phosphorus, or  available  phosphoric

acid, P₂O₅  phosphate (P₂O₅), and  soluble potassium, or soluble

potash, K₂O soluble potash (K₂O), of a fertilizer and shall be

stated in the same order  as listed given in this subdivision.

Indication of grade does not apply to peat or peat moss or soil

conditioners.

(p)  (n)  "Groundwater" means underground water within the

zone of saturation.

(q)  (o)  "Groundwater stewardship practices" means any of a

set of voluntary practices adopted by the commission of agriculture

pursuant to part 87, designed to protect groundwater from

contamination by fertilizers.

(r)  (p)  "Guaranteed analysis" means the minimum percentage

of each plant nutrient guaranteed or claimed to be present.

(s)  (q)  "Label" means any written, printed, or graphic

matter on or attached to packaged fertilizer or used to identify

fertilizer distributed in bulk or held in bulk storage.

(t)  (r)  "Labeling" means all labels and other written,

printed, electronic, or graphic matter upon or accompanying any

fertilizer at any time, and includes advertising,  or  sales

literature, brochures, posters, and internet, television, and radio

announcements used in promoting the sale of that fertilizer.

(u) "Licensee" means the person who receives a license to

manufacture or distribute fertilizers under this part.

     (v) "Lot" means an identifiable quantity of fertilizer that

can be sampled officially according to methods adopted under

section 8510, that amount contained in a single vehicle, or that

amount delivered under a single invoice.

(w)  (s)  "Manufacture" means to process, granulate, compound,

produce, mix, blend, or alter the composition of fertilizer or

fertilizer materials.

     (t) "Maximum contaminant level" means that term as it is

defined in title XIV of the public health service act, chapter 373,

88 Stat. 1660, and the regulations promulgated under that act.

     (u) "Mixed fertilizer" means a fertilizer containing any

combination or mixture of fertilizer materials designed for use or

claimed to have value in promoting plant growth, including mixtures

of fertilizer and pesticide.

     (v) "Nitrogen fertilizer" means a fertilizer that contains

nitrogen as a component.

     (w) "Official sample" means a sample of fertilizer taken by a

representative of the department of agriculture in accordance with

acceptable methods.

     (x) "Order" means a cease and desist order issued under

section 8511.

     (y) "Package" or "packaged" means any type of product

regulated by this part that is distributed in individual containers

with a capacity not exceeding 55 gallons for liquids and not

exceeding 200 pounds for solids.

     (z) "Percent" and "percentage" mean the percentage by weight.

     (aa) "Soil conditioner" means a substance that is used or

intended for use solely for the improvement of the physical nature

of soil and for which no claims are made for plant nutrients

content. Soil conditioner does not include guaranteed plant

nutrients, hormones, bacterial inoculants, and products used in

directly influencing or controlling plant growth. 

     (bb) "Specialty fertilizer" means any fertilizer distributed

primarily for nonfarm use, such as use in connection with home,

gardens, lawns, shrubbery, flowers, golf courses, parks, and

cemeteries, and may include fertilizers used for research or

experimental purposes.

     (cc) "Ton" means a net ton of 2,000 pounds avoirdupois.

     (dd) "Use" means the loading, mixing, applying, storing,

transporting, or disposing of a fertilizer.

Sec. 8501a. As used in this part:

     (a) "Mixed fertilizer" means a fertilizer containing any

combination or mixture of fertilizer materials.

     (b) "Nitrogen fertilizer" means a fertilizer that contains

nitrogen as a component.

     (c) "Official sample" means a sample of fertilizer taken by a

representative of the department of agriculture in accordance with

acceptable sampling methods under section 8510.

     (d) "Order" means a cease and desist order issued under

section 8511.

     (e) "Package" or "packaged" means any type of product

regulated by this part that is distributed in individual labeled

containers.

     (f) "Percent" and "percentage" mean the percentage by weight.

     (g) "Person" means an individual, partnership, association,

firm, limited liability company, or corporation.

     (h) "Primary nutrients" means total nitrogen, available

phosphate, or soluble potash, or any combination of those

nutrients.

     (i) "Registrant" means the person who registers a product

under this part.

     (j) "Soil conditioner" means any substance that is used or

intended for use to improve the physical characteristics of soil,

including, but not limited to, materials such as peat moss and peat

products, composted products, synthetic soil conditioners, or other

products that are worked into the soil or are applied on the

surface to improve the properties of the soil for enhancing plant

growth. Soil conditioner does not include guaranteed plant

nutrients, agricultural liming materials, pesticides, unmanipulated

animal or vegetable manures, hormones, bacterial inoculants, and

products used in directly influencing or controlling plant growth.

A soil conditioner for which claims are made of nutrient value is

considered a fertilizer for the purposes of this part.

     (k) "Specialty fertilizer" means any fertilizer distributed

primarily for nonfarm use, such as use in connection with home,

gardens, lawns, shrubbery, flowers, golf courses, parks, and

cemeteries, and may include fertilizers used for research or

experimental purposes.

     (l) "Ton" means a net weight of 2,000 pounds avoirdupois.

     (m) "Use" means the loading, mixing, applying, storing,

transporting, or disposing of a fertilizer.

     Sec. 8502. (1) A packaged fertilizer distributed in this

state, including packaged  custom  mixed fertilizer and soil

conditioner, shall have placed on or affixed to the package or

container a label setting forth in clearly legible and conspicuous

form  all of  the following:

     (a) The net weight of the contents of the package, except that

soil conditioners, peat, or peat moss  shall  may be designated by

volume.

     (b) Brand or product name.

     (c) Name and address of the licensed manufacturer or

distributor.

     (d) Grade. However, the grade is not required when no primary

nutrients are claimed. This subdivision does not apply to peat or

peat moss,  or material sold as a soil conditioner, or fertilizer

for which no primary nutrients are claimed.

     (e) Guaranteed analysis. This subdivision does not apply to

peat or peat moss or material sold as a soil conditioner.

     (2) A fertilizer distributed in this state in bulk, except a

custom blend, shall be accompanied by a written or printed invoice

or statement to be furnished to the purchaser at the time of

delivery containing in clearly legible and conspicuous form  all of

the following information:

     (a) Name and address of the licensed manufacturer or

distributor.

     (b) Name and address of purchaser.

     (c) Date of sale.

     (d) Brand or product name.

     (e) Grade. However, the grade is not required when no primary

nutrients are claimed.

     (f) Guaranteed analysis.

     (g) Net weight.

(3) A custom blend shall be accompanied by a written or

printed invoice or statement to be furnished to the purchaser at

the time of delivery containing in clearly legible and conspicuous

form the following information:

     (a) Name and address of the licensed manufacturer or

distributor.

     (b) Name and address of purchaser.

     (c) Date of sale.

     (d) Either the net weight and guaranteed analysis of the

custom blend or the guaranteed analysis and net weight of each

material used in the formulation of the custom blend or both.

(4)  (3)  Fertilizer in bulk storage shall be identified with

a label attached to the storage bin or container giving the name

and address of the licensed manufacturer or distributor and the

name and grade of the product.

     Sec. 8503. (1) The guaranteed analysis  for the primary

nutrients of nitrogen, available phosphoric acid, P₂O₅, and soluble

potash, K₂O, shall be expressed as whole numbers on the label  shall

show the minimum percentage of plant nutrients claimed in the

following order and form:

(a) Total nitrogen  , N (N). _____%

     Available  phosphoric acid, P₂O₅  phosphate (P₂O₅). _____%

     Soluble potash , K₂O  (K₂O). _____%

      (2) A mixed fertilizer may not be sold if the sum of the

guarantees for the nitrogen, available phosphoric acid, and soluble

potash totals less than 20%, except specialty fertilizers permitted

to be sold by product registration issued by the department.

     (3) If elemental guarantees are required by rules, as

authorized by section 8516, the guaranteed analysis shall be

expressed in terms of percentage of available phosphorus, P, and

soluble potassium, K.

(b) When applied to mixed fertilizers, grade shall be given in

whole numbers only. However, specialty fertilizers with a guarantee

of less than 1% of total nitrogen, available phosphate, and soluble

potash may use fractional units. Fertilizer materials, bone meal,

manures, and similar materials may be guaranteed in fractional

units.

     (c) When applied to custom blends, grade can either be given

in whole numbers or in numbers expressed to the nearest 1/10 of a

percent in the form of a decimal in the analysis.

     (d) For unacidulated mineral phosphatic material and basic

slag, bone, tankage, and other organic phosphatic materials, the

total phosphate or degree of fineness, or both, may also be

guaranteed.

(2)  (4)  Additional plant nutrients, other than nitrogen,

phosphorus, and potassium, claimed to be present in any form or

manner shall be guaranteed on the elemental basis, at levels not

less than those established by rules.  The materials shall be

approved by the director of the department, by and with the advice

of the director of the Michigan agricultural experiment station.

Other beneficial compounds or substances, determinable by

laboratory methods, may be guaranteed if approved by the director.

     Sec. 8505. (1) A person shall not distribute a specialty

fertilizer or soil conditioner  until  unless it is registered  by

the manufacturer or distributor  with the department.  and the

appropriate groundwater protection fees provided for in section

8715 have been submitted.  An application  in duplicate listing

each brand and product name of each grade of specialty fertilizer

or soil conditioner shall be made on a form furnished by the

director and shall be accompanied with  a fee of $25.00  the fees

described in subsection (2) for each brand and product name of each

grade. Labels for each brand and product name of each grade shall

accompany the application. Upon approval of an application by the

director, a copy of the registration approval shall be furnished to

the applicant. All registrations expire on December 31 of each

year.

(2) A person applying for a registration under subsection (1)

shall pay the following annual fees for each brand and product name

of each grade:

     (a) Registration fee of $25.00.

     (b) Appropriate groundwater and freshwater protection fees

provided for in section 8715.

     (3) A distributor is not required to register a brand of

fertilizer that is registered under this part by another person, if

the label does not differ in any respect.

     (4) A manufacturer or distributor of custom blend specialty

fertilizers for home lawns, golf courses, recreational areas, or

other nonfarm areas shall not be required to register each grade

distributed but shall license their firm on an application

furnished by the director for an annual fee of $100.00 and shall

label the fertilizer as provided in section 8502. The label of each

fertilizer distributed under this subsection shall be maintained by

the manufacturer or distributor for 1 year for inspection by the

director.

     (5) A manufacturer or distributor of soil conditioners blended

according to specifications provided to a blender or blended as

specifically requested by the consumer prior to blending shall

either register each brand or blend distributed or license its firm

on an application furnished by the director for an annual fee of

$100.00 and shall label the soil conditioner as provided in section

8502. The label of each soil conditioner distributed under this

subsection shall be maintained by the manufacturer or distributor

for 1 year for inspection by the director.

     Sec. 8506. (1) An inspection fee of 10 cents per ton shall be

paid to the department for all fertilizers or soil conditioners

sold or distributed in this state. For peat or peat moss, the

inspection fee shall be 2 cents per cubic yard. This fee shall not

apply to registered specialty fertilizers or soil conditioners sold

or distributed only in packages of 10 pounds or less.

     (2) Payment of the inspection fee shall be made on the basis

of tonnage reports setting forth the number of tons of each grade

of fertilizer and soil conditioner and the number of cubic yards of

peat or peat moss sold or distributed in this state. The reports

shall cover the periods of the year and be made in a manner

specified by the director  of the department in rules, and shall

be filed with the department not later than 30 days after the close

of each period. The time may be extended for cause for an

additional 15 days only on written request to, and approval by, the

department. Remittance to cover the inspection fee shall accompany

each tonnage report. Payments due of less than  $1.00  $5.00 are

waived,  or and refunds  resulting from overpayment  of less than

$1.00, are waived $5.00 will not be processed, unless requested in

writing.  A penalty of 10% of the amount due, with a minimum of

$10.00, shall be assessed against the licensee for all amounts not

paid when due. For any report not filed with the department by the

due date, a penalty of $50.00 or 10% of the amount due, whichever

is greater, shall be assessed. Unpaid fees and penalties constitute

a debt and become the basis of a judgment against the licensee.

Records upon which the statement of tonnage is based are subject to

department audit.

     (3) When more than 1 person is involved in the distribution of

fertilizer or soil conditioners, the last person who is licensed or

has the fertilizer or soil conditioner registered and who

distributes to a nonlicensee or nonregistrant is responsible for

reporting the tonnage and paying the inspection fee.

     Sec. 8507. (1) Each licensee and registrant shall maintain for

a period of 3 years a record of quantities and grades of fertilizer

and soil conditioner sold or distributed by the licensee or

registrant and shall make the records available for inspection and

audit during normal business hours on request of the department.

Each  vendor of fertilizer and soil conditioner distributor shall

maintain for a period of 3 years shipping data such as invoices and

freight bills pertaining to fertilizer and soil conditioner that

establish date and origin of the shipment, and shall make the

records available for inspection and audit on request of the

department.

     (2) Tonnage payments, tonnage reports, or other information

furnished or obtained under this part shall not be disclosed in a

way that will divulge the business operations of any  one 1

person.

     Sec. 8509. A person shall not do any of the following:

     (a) Sell or distribute fertilizer or soil conditioner in

violation of the requirements of this part or the rules promulgated

under this part.

     (b) Make a guarantee, claim, or representation in connection

with the sale of fertilizer or soil conditioner, or in  their its

labeling, which is false, deceptive, or misleading.

     (c) Manufacture or distribute a fertilizer or soil conditioner

without a license as required by this part or distribute a

specialty fertilizer or soil conditioner unless registered as

required by this part.

     (d) Make a false or misleading statement in an application for

a license or in an inspection fee or statistical report or in any

other statement or report filed with the department pursuant to

this part.

     (e) Attach or cause to be attached an analysis stating that a

fertilizer contains a higher percentage of a plant nutrient than it

in fact contains.

(f) Distribute an adulterated product.

     Sec. 8510. (1) The  department director shall inspect,

sample, and analyze fertilizers and soil conditioners distributed

within this state at a time and place and to the extent necessary

to determine compliance with this part.

(2) The methods of sampling and analysis under subsection (1)

shall be those as established by the association of American plant

food control officials or the association of analytical

communities, international, as those standards exist on the

effective date of the amendatory act that added this subsection,

and are incorporated by reference. The department may promulgate

rules to update these standards. In cases not covered by such

methods, or in cases where methods are available in which improved

applicability has been demonstrated, the director may adopt, by

rule, such other methods as are considered appropriate.

(3)  (2)  Department representatives and inspectors shall have

free access during regular business hours and extended operating

hours to all premises where fertilizers or soil conditioners are

manufactured, sold, or stored, and to all trucks or other vehicles

and vessels used in the transportation of a fertilizer or soil

conditioner in this state, to determine compliance with this part.

Department representatives and inspectors may stop any conveyance

transporting fertilizer or soil conditioner for the purpose of

inspecting and sampling the products and examining their labeling.

(4)  (3)  A manufacturer or distributor of fertilizer or soil

conditioner shall submit to the department, upon request, product

samples, copies of labeling, or any other data or information that

the department may request concerning composition and claims and

representations made for fertilizers and soil conditioners

manufactured or distributed by the manufacturer or distributor

within this state.

(5)  (4)  The director may, upon reasonable notice, require a

person to furnish any information relating to the identification,

nature, and quantity of fertilizers that are or have been used on a

particular site and to current or past practices that may have

affected groundwater quality. Information required under this

subsection is confidential business information and is not subject

to the freedom of information act,  Act No. 442 of the Public Acts

of 1976, being sections 15.231 to 15.246 of the Michigan Compiled

Laws 1976 PA 442, MCL 15.231 to 15.246.

Sec. 8514.  A person who violates this part is guilty of a

misdemeanor. A person who violates this part is liable for all

damages sustained by a purchaser of a product sold in violation of

this part. In an enforcement action, a court, in addition to other

penalties provided by law, may order restitution to a party injured

by the purchase of a product sold in violation of this part.

     (1) The fertilizer control fund is created within the state

treasury.

     (2) The state treasurer shall receive for deposit in the fund

all fees, administrative or civil fines, and payments for the costs

of investigations incurred by the department collected under this

part. In addition, the state treasurer may receive money or other

assets from any source for deposit into the fund. The state

treasurer shall direct the investment of the fund. The state

treasurer shall credit to the fund interest and earnings from fund

investments.

     (3) Money in the fund at the close of the fiscal year shall

remain in the fund and shall not lapse to the general fund.

     (4) The department shall expend money from the fund, upon

appropriation, only for 1 or more of the following purposes:

     (a) The administration and enforcement of this part.

     (b) The development of training programs to ensure the proper

use and storage of fertilizer.

Sec. 8519. A person aggrieved by an order issued pursuant to

this part may request a hearing pursuant to the administrative

procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.

     Sec. 8520. (1) A person who violates this part or rules

promulgated under this part is subject to the penalties and

remedies provided in this part regardless of whether he or she

acted directly or through an employee or agent.

     (2) The director, upon finding after notice and an opportunity

for an administrative hearing that a person has violated or

attempted to violate any provision of this part or a rule

promulgated under this part, may impose an administrative fine of

not more than $1,000.00 for each violation or attempted violation.

     (3) If the director finds that a violation or attempted

violation has occurred despite the exercise of due care or did not

result in significant harm to human health or the environment, the

director may issue a warning instead of imposing an administrative

fine.

     (4) The director shall advise the attorney general of the

failure of any person to pay an administrative fine imposed under

this section. The attorney general shall bring an action in a court

of competent jurisdiction to recover the fine.

     (5) A person who violates this part or a rule promulgated

under this part, or attempts to violate this part or a rule

promulgated under this part, is guilty of a misdemeanor punishable

by imprisonment for not more than 90 days or a fine of not more

than $5,000.00 for each violation or attempted violation, in

addition to any administrative fines imposed.

     (6) A person who knowingly and with malicious intent violates

this part or a rule promulgated under this part is guilty of a

misdemeanor punishable by imprisonment for not more than 90 days or

a fine of not more than $25,000.00 for each offense.

     (7) The director may bring an action to enjoin the violation

or threatened violation of this part or a rule promulgated under

this part in a court of competent jurisdiction of the county in

which the violation occurs or is about to occur.

     (8) The attorney general may file a civil action in which the

court may impose on any person who violates this part or a rule

promulgated under this part or attempts to violate this part or a

rule promulgated under this part a civil fine of not more than

$5,000.00 for each violation or attempted violation. In addition,

the attorney general may bring an action in circuit court to

recover the reasonable costs of the investigation from any person

who violated this part or attempted to violate this part. Money

recovered under this subsection shall be forwarded to the state

treasurer for deposit into the fund.

     (9) In defense of an action filed under this section for a

violation of this part, in addition to any other lawful defense, a

person may present evidence as an affirmative defense that, at the

time of the alleged violation or attempted violation, he or she was

in compliance with this part and rules promulgated under this part.

     (10) A person who violates this part is liable for all damages

sustained by a purchaser of a product sold in violation of this

part. In an enforcement action, a court, in addition to other

sanctions provided by law, may order restitution to a party injured

by the purchase of a product sold in violation of this part.

     (11) Applicable provisions of the revised judicature act of

1961, 1961 PA 236, MCL 600.101 to 600.9948, apply to civil actions

filed pursuant to this part.

     Sec. 8521. The penalties and sanctions provided for violations

of this part do not apply to any of the following:

     (a) A commercial carrier while lawfully engaged in

transporting a commercial fertilizer within this state, if the

carrier, upon request, permits the director to copy all records

showing the transactions in and movement of the commercial

fertilizer.

     (b) The shipment or movement of any commercial fertilizer

considered to be in violation of this part, for the specific

purposes of disposal or storage when conducted under the approval

of the director.

     (c) Public officials of this state and the federal government

while engaged in the performance of their official duties in

administering this part or rules promulgated under this part.

     Sec. 8522. A court shall not allow the recovery of damages by

Senate Bill No. 840 (S-5) as amended December 13, 2006

a person against whom an administrative action was brought

resulting in an order stopping the sale or use of fertilizer or

fertilizer material or requiring its seizure if the court finds

that there was probable cause for the action or order.

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